Attorneys for a man convicted of murdering his estranged wife say they plan to ask the state Supreme Court to reconsider a recent decision that reinstated the death sentence against their client.
The South Carolina Supreme Court’s Nov. 23 decision in Winkler v. State overturned a lower court ruling to grant Louis Winkler post-conviction relief on the grounds that his trial counsel was ineffective.
The key issue in Winkler’s case stemmed from a jury question sent to the trial judge during the sentencing phase. The jury inquired about what would happen if they failed to reach a unanimous decision about whether to approve the death penalty for Winkler.
But rather than answer that question, the trial judge twice told the jury he could not answer that question.
Winkler argued his attorney should have objected to the trial court’s response and asked that the jury be told that without a unanimous decision to sentence him to death, Winkler would be sentenced to life without parole.
The Supreme Court, however, determined that neither state nor federal precedent supported making an objection.
That said, the justices also held that Winkler’s defense team should have been given more time to investigate whether their client suffered from brain damage.
John Mills, an attorney with the Philips Black Project in San Francisco, who represented Winkler on appeal, said he was disappointed by the Supreme Court’s decision.
“We will be seeking a rehearing later this week. Depending on the outcome of that request, we may also seek review from the Supreme Court of the United States,” Mills said.
Defense attorneys who handle capital murder cases said Winkler’s case shows just how important it is for trial counsel to object to decisions affecting their client.
“There is no reason an attorney shouldn’t object when it comes to this kind of question from the jury—especially in a capital murder case,” said criminal defense attorney Christopher Adams, a solo practitioner who has represented clients facing the death penalty.
Unanswered questions
Winkler was sentenced to death by a Horry County jury in February 2008 after he was arrested and charged with the first-degree murder of his estranged wife, Rebekah Grainger Winkler.
According to prosecutors, Winkler kicked in the door to his wife’s home, knocked her son to the ground and shot her in the face, killing her instantly.
In addition to the murder conviction, Winkler was found guilty of first-degree burglary and aggravated assault.
But the jury struggled with whether to approve the death penalty for Winkler’s crimes.
Court records say the jury deliberated for more than six and a half hours before sending a note to the trial judge asking, “Could you please explain what happens if we’re not able to reach a unanimous decision?”
Judge James Lockemy sent a written response, which said, “I cannot answer the question the way you phrased it. Please let me know if you have any other questions.”
After two more hours of deliberation, Lockemy sent another note, asking whether the jury had any other questions. The jury responded with a note asking, “What does the law state when a jury does not reach any unanimous decision at this stage of the trial?”
Lockemy sent back a response saying “I cannot answer hypothetical questions.”
Winkler’s attorney did not object either time Lockemy told the jury he could not answer its question.
Lockemy then gave the jury an Allen charge, in which he informed the jury twice that “the decision of the jury must be unanimous.”
Not long after, the jury returned a verdict recommending the death penalty.
Post-conviction relief
Winkler filed for and was granted a post-conviction relief trial, where he argued his trial counsel had provided ineffective assistance by failing to object to the judge’s refusal to answer the jury’s questions.
Winkler’s PCR attorneys also sought to investigate whether he suffered from brain damage, which could have played a role in the murder of his wife. Winkler twice moved to amend the scheduling order so his attorneys could have more time to obtain and analyze MRI and PET scans to determine whether he suffered from brain damage. The PCR court granted the first motion but denied the second.
At the close of the PCR trial, Judge Benjamin Culbertson found that Winkler did not present any evidence that he suffered from brain damage. However the court granted Winkler post-conviction relief on the ground that the trial counsel had provided ineffective assistance.
Winkler’s case was ultimately appealed to the South Carolina Supreme Court.
In a 3-2 opinion, the court reached the exact opposite of the PCR’s findings.
The Supreme Court determined Winkler’s attorneys should have had more time to investigate the possibility of brain damage.
But the high court also found that Winkler’s trial counsel had not been ineffective. Citing numerous state and federal cases, Justice John Few said the PCR court’s conclusion on the ineffective assistance of counsel finding was an error of law.
Few noted that the trial counsel had not objected to the trial judge’s response to the jury’s questions because it was his understanding that the judge could not tell the jury what would happen if they could not reach a unanimous decision.
“Trial counsel’s understanding was consistent with applicable precedent,” Few said. “In fact, we can find no South Carolina or federal precedent on which Winkler’s trial counsel could have relied upon to support making an objection.”
However, in a separate dissent, Chief Justice Costa Pleicones said none of the cases relied upon by the majority were precedents that “excuse a reasonable advocate operating under prevailing professional norms from requesting that this jury’s repeated questions be answered.”
Pleicones’ dissent went on to say that the majority’s view that answering the jury’s questions in Winkler’s case might have diverted a juror from his or her duty to deliberate was unpersuasive.
“The issue before us is not whether juries should be given a pre-deliberation charge on the effect of their failure to reach a sentencing verdict but whether jurors who repeatedly raise questions should be told the truth,” Pleicones said. “In my opinion, the majority’s concerns reflect a lack of faith in our jurors and in the jury system as a whole.”
On notice
The Supreme Court ultimately remanded Winkler’s case to the PCR court with instructions that his attorneys should be afforded more time to investigate the brain damage claim.
But criminal defense attorneys said that even if Winkler is found to have been suffering from brain damage at the time of the murder, it is unlikely to overturn the death sentence.
“That’s why the defense counsel would much rather have hung their hat on the ineffective assistance of counsel claim,” Adams said.
Regardless, Adams said the Winkler case should put defense attorneys in capital cases on notice that they should lodge objections if a judge declines to answer a jury’s questions.
“That kind of information is exactly what jurors need to make decisions on whether to impose the death penalty,” Adams said. ”There is a lot of social science that says confusion in the jury room is often used by death-leaning jurors to beat up on life-leaning jurors with worst-case scenarios.”
Former South Carolina Attorney General Charlie Condon said he agreed that defense attorneys are likely to be much more vocal when judges decline to answer jury questions.
“This was a very close case. You had fine legal minds on both sides thoroughly examining the issue,” Condon said. “But now that this issue has been flagged, I can’t imagine trial counsel wouldn’t jump up and down and object if a judge doesn’t answer a question, even if it’s just to clean up the record and get a response.”
The 29-page opinion is Winkler v. State (Lawyers Weekly No. 010-093-16). A case digest is available on sclawyersweekly.com.
Follow Jeff Jeffrey on Twitter @SCLWJeffrey